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tv   [untitled]    March 13, 2012 7:00pm-7:30pm EDT

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strength? what is deep down inside that you want to do for yourself, right? and all of these athletes have done it by pushing ourselves to be the very best that we can at something that we feel deeply about. right? and that's sports in this case, but that can be anything. it is about digging down deep and finding the thing that makes you want to do more. >> first lady michelle obama with samantha cameron, the wife of the british prime minister. tomorrow, the official visit of the british prime minister here on c-span radio. we will continue the conversation tomorrow morning with results from alabama and mississippi. among our guests is jennifer duffy. we will join the live election returns. a live simulcast on c-span radio and c-span television.
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>> this is our seventh politico. coming up on c-span 3, a look at redistricting. first, the discussion on the voting rights act which requires the justice department to approve congressional maps in some states. then a conversation on the demographics of redisstricting. after that, a senate hearing with the heads of the u.s. southern and northern commands. they oversee military operations in the western hemisphere. later, new york mayor michael bloomberg and antonio villaraigosa. following the outcome of the 2010 census. some redistricting plans have landed in courts. stanford law school held a
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conference in january and what is ahead for the redistricting for the coming decade. this panel on the voting rights act is 90 minutes. >> we're going to get started again. thank you all for coming back in. thank you for being here. one of my favorite philosophers is satchel paige. who is famous for many things. telling you to avoid eating fried food. thank you for helping us with the lunch along those lines. to the people at the levin center. one of the things that he says is let whomever sits around recollecting, i'm looking up the line. that is redistricting
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partisanship of the voting rights act. i want to start with the past of the voting rights act. it situates many of the debates today. the year the voting rights act was passed, a poem was published called "long view negro." through the telescope of dreams, emancipation loomed large. turn the telescope around and look through the larger end. wonder why what was so large becomes so small again. we are roughly a half century away from the second reconstruction voting rights act was the crown jewel. and in many ways, the voting rights act has been amazingly successful. we forget what prompted the voting rights act to be passed in the future. but when we ask why the first reconstruction which was roughly twice as far from the voting
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rights act as we are from the voting rights act in the opposite direction. that was it is 100 years from the first recondition instructi reconstruction to the act today. we asked why it failed. there were a number of reasons. one was the exhaustion by the racial injustice and the compromise. a second was a progressive belief and the progressives used the words to describe themselves. that ethnic politics is the end of good government. purging race from the political process is important. the third reason is the united states supreme court in a series of decisions of crookshank through giles protected the
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first reconstruction to protect themselves through the political process. president johnson when he signed the voting rights act called it one of the most monday most mot he could sign. then the other civil rights act of 1964. that i think we just delivered the south to the republican party for a long time to come. so partisanship and the voting rights act have always been connected and intertwined in interesting and important ways. our panel today will look at the issues from a variety of perspectives. and i'll introduce the panel briefly in the order they will speak. ellen katz is a professor at law at university of michigan law
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school. she has written major scholarship and imperial scholarship, including one of the largest studies of section two of the voting rights act. why partisan use of the voting rights act may not be so bad after all. before entering teaching, she worked at the department of justice. joshua thompson is with the legal foundation. a public interest legal organizati organization. he was co- author of the foundation amecus brief in northwest austin municipal district. a case challenging the section five of the voting rights act. an issue that we know is about to return to the supreme court in a variety of ways.
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finally, nina paraez. in that role, among other things, she supervises the offices throughout the united states in the voting rights dockets. she is a particularly prominent voting rights attorney. she was the last winner of the section two case at the u.s. supreme court for the plaintiff's side. a case we discussed this morning. and she is one of the lead lawyers in the current texas redistricting case that is working through the western district of texas through the district of district of columbia and the supreme court. it's a trifecta. the panelists will speak for about 10 to 15 minutes. we'll turn to questions about changes in the world since the voting rights act.
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what the changes get applied. ellen. >> thank you. it is great to be here. it has been a great day so o th slipper. i did not know is what it was called, for organizing a terrific event. i know nina will talk about the texas case in detail, but i want to start there with a simple observation. that is that much of the mess that has been going on in texas would not have happened if john mccain was president of the united states. by a republican. a republican controlled department of justice would have almost certainly approved the texas plans by now as is. it would not have stopped the litigation. there would be much to fight about. in that respect, some of mess would not happen. as that stands, the attorney general of texas never even asked the department of justice to approve the texas plan.
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opting to go to federal district court thinking that barack obama's justice department would not view the texas redistricting plan kindly or favorably given the objections raised from the beginning. that was correct. the justice department has a number of serious objections to the plan. i think in important respects, the texas dispute is a mirror image of the battles of the last decade only with the republican and democratic roles reversed. that is georgia and ashcroft. pam spoke about that this morning. you saw the democratic attorney general thinking that george bushes justice department would not think kindly of the plan. i don't want to explore the statutory questions in the case.
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one of the things that is clear about the case is that the department of justice's position in that case mapped on the interests of the republican party and just as certain had there been democrats in control of the time, they would have approved the plan readily. what i think both of the cases standing side by side show something we all know. that is that democrats and republicans enforce voting rights differently. democrats tend to enforce them to evolve to the democratic party. the republicans do likewise. this is democrats reading the voting rights act more aggressively, but not always and georgia versus ashcroft is the best example. what i want to explore here is the question whether we should be worried about this. whether the different ways democrats and republicans enforce the voting rights act prevents the statute from
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operating effectively or as we hope it would. in thinking about the question, i want to assume or going to assume, not the party of the sitting president stands to benefit from the enforcement actions taken by the department of justice. i want to be agnostic and ask you to be as well as to whether that actually described any enforcement decision. i want to assume that that is what is going on. i don't want to make the argument that in fact democrats or republicans are necessarily seeking partisan gain when they make any particular decision. what if they were? so imagine, the attorney general were to say something to the effect of the department of justice's position in the pending texas versus the united states is an effort to block an aggressive republican gerrymander. we are using that as a legal hook to push back against it. he never said any such thing.
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he said quite the opposite. but assume he said it. assume it accurately describe what the department of justice was up to in this case. should we be worried? i want to explore the idea that maybe not. maybe we should not be worried and it is not a particular problem, at least in cases like texas versus the united states. in pursuing this claim, we have to part company with some who are sitting in this room who have long used the voting rights act as distasteful and destru destructi st upon is not just the voting rights act in texas versus the united states is benign, but it facilitates the act in important ways. so to do that or develop those claims, i want to look at two voting rights act and knock them
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down and raise a broader point about the practice more generally. so two objections. there are others. two objections to the practice. one is that the claims that are brought forth when the statute is used if a partisan use is frivolous or manufacturered. the idea here is that the claims under lie that the disputes underlying the claims are not racial. and that those unhappy with the districting plan suffer members of a political party. not as members of a racial group. to assert a racial claim under the voting rights act is factual error. related to that is a second objection that it's not just error. it is not just factually wrong, but it does affirmative damage. the recasting of a dispute in racial terms racializes the
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dispute. things like racial polarization. it makes things worse as a consequence. in a nutshell, what i want to say -- i think they fundamentally mistake cause and affect. california aside, redistricting is a partisan process. it is achieved or it's done through what are race-based moves in most jurisdictions. it relies on the close connection with race and party in most jurisdictions. it is not an accident that georgia democrats unpa s packed african-american districts. it is not a mistake in texas that they are achieving partisan ends by moving latinos all around the state. we should not be surprised these moves race-based interests. the voting rights act claims that follow from the cases don't
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racialize the dispute. they are political, too. all i want to suggest about them is partisan motivation, even predominant motivation shouldn't prevent, preclude statutory injury under the voting rights act. the claims we can assume are manufactured to a partisan end. it doesn't mean they are frivolous or unfounded. we could go through case after case muand i won't do it now. we might think partisan is playing a role. there are claims under the voting rights act have been made even if they are not successful. i want to suggest in certain cases like texas versus the united states, assuming that is what is going on is not the problem that is often assumed to be. it provides pushback against partisan districting moves that
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they rely on the close connection between race and party. i want to also suggest or ask you to consider a broader point about partisan use of voting rights act. it might be beneficial in an additional sense in it helps us see the ways in which the mission underlying the voting rights act has evolved over the years. this is a statute and we heard about this today that was put into place at a time when local majorities were unwilling to even acknowledge much le less enforce minority voting rights. it is important to fight discrimination in various forms. it also does something else. it provides a forum to resolve disputes. by which i mean it sets forth the complex web of norms and procedures through which
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interested parties hash out and resolve claims about minority participation in a majority system. i think that function of the voting rights act is crucially important. there are other ways we could assess questions of equality and fairness in the political process. i think the value of the voting rights act as a dispute mechanism not lies in the manifest of the dispute resolution or even in its an sail yens which is significant. rather, i think it is value that lies and operates in a tolerable form of resolution. i mean tolerable. i might be more generous and say it is fair and effective and just in many situations. for the point i want to make, i think tolerable is actually good enough. tolerable captures the role it plays.
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it exists. simply because it exists, state and local governments can rely on it. that reliance is to them empowering. this is the point i hope i can convince you of. by empowering, i mean something different than the ways in which the voting rights act has been recognized to give the local official political cover to do the right thing against the majority that might not be so willing. i'm mindful of the role there. it is an important role. i think the vra is empowering in a broader sense. a sense to all local officials, be it sympathetic or not to the goals in the statute. what i mean here, or relies on a larger literature that recognizes the way power can be augmented through the restriction. the vra is empowering by the constraints it imposes. it offers a competing questions about equality. think about the texas dispute
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here. texas needs to redraw the district. democrats want to push back. republicans want as many seats. the question becomes how many influence will they be given or allowed in the midst of the fight? that fight occurs and continues now. not as a question of what is fair or an open-ended inquiry of what it might require, but in a limited inquiry of the voting rights requires. that question is disputed hotly. we will not see a resolution to it for a while. i suspect. the vra's role is not eliminating the controversy, but given the terms and procedures through which the claim is litigated and resolved. when texas puts forward its plan, it complies with the voting rights act. that is going to be opposed and is being opposed.
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texas needs to respond. that conversation continues. we can assume that everybody's motivated bipartisan aims. we can assume that is going on and the voting rights act is providing an important function in framing the debate and providing the procedures and rules for which that debate occurs. it is a way of hashing out the competing claims of owe quality while still channelling it and allows the participant to assert ownership over the claims. i think it is important to recognize the vra's role as a dispute resolution mechanism. we think about it in negative terms as a constraint and binding us to the mass to
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prevent us from doing things that we might otherwise do. it has an affirmative quality that is important to recognize. not because it gives us a complete picture of what the statute does, but it makes us aware of what would bes abnce. one of the reasons i think the voting rights act is vulnerable today is because it it too often conceived of too narrowly. there arertipated in it about s and whether or not it is needed in those ways. what i want to close with is the thought that it is more than a constraint. even if the vra has somehow evolved or developed into the elephant whistle shooingthreat,
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providing an important function in helping localities revolve the issues. issues that are occurring and unavoidable. influence of latino voters have in texas. these are questions that are not amenable to a permanent solution. they will come up again and again. the reason is not the racist intent under lies the resolution. it may well. because the discrimination that gave rise to the voting rights act in the first place and our longstanding efforts to address it have shaped the landscape. the result is all public officials, either of goodwill or not, need to control the conflict. they need to help them through this which are empowering. i have more to say. i think this assistance should do more than bolster. it provides an independent basis for it.
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why don't i stop there. >> thank you. i'm joshua thompson. i want to thank slipper and alex for inviting me here. i'm a last-minute replacement with abigail. she is probably forgotten more about the voting rights act than i will ever know. i will try to develop a thesis i think she will support. that is section five of the voting rights act is unconstitutional and the court will find it unconstitutional. my thesis is not the section five of the voting rights act must be or was always unconstitutional. it is as constituted unconstitutional. section five was the remedial powers and requires covered states in the south to achieve pre-clearance as originally understood. it must be con grew end
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proportional. in northwest austin. latest shall be a county case agreed that it must be proportional. section five must be a proportional remedy to achieving the franchise for minorities. when section five was passed in 1965, we were 100 years after the 15th amendment. we were in a extreme state of discrimination. a mayoral candidate asked white voters to shoot in their tracks any african-american voters. alabama was 19% registration rate. white voting in these states was well over 50% higher. how did these states achieve
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rampant diseven francement of blacks? the voting rights act outlawed. it was a continuous effort by the south over 100 years to change and amend the voting practices to disfranchise african-american voters. these literacy tests would ask things. the examples are how many bubbles are in a soap bar or ask the african-americans to read the content of the beijing daily. which is in mandarin. this is when section five is proposed as a remedy to the 15th amendment rights. it would seem at that time as an extreme remedy. it was passed for five years. chief justice warren when the section five was first up for constitutionality called it an
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uncommon exercise of congressional power that would not have been appropriate absent the conditions and unique circumstances present in the jurisdictions. in the sense, hugo black describes, some of the states cannot pass state laws or adopt state constitutional amendments without first being compelled to beg federal authorities for policies. some of the constitutional structure to draw any state and federal power almost meaningless. one was the federal government had certain specific and limited powers and no other powers to be reserved to the states respectively or the people. despite the discrimination going on at the time section five was adopted, the supreme court and president and the justice department all recognized its
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temporary need. recognized it was a remedy justified by the times it was passed. i argue it was a proportional response to the voting in 1965. section five of the voting rights act was constitutional and passed and remained constitutional for some time after that. and sometimes good legislation produces good rules, which section five did. near immediately after section five was adopted, mississippi, which as i previously said in 1964 had 7% black registration. jumped to 60% within three years. alabama went to 53%. the situation continued to improve over the years that section five was enforced. to the state now where the covered jurisdictions in the south. the state legislation are 31 to 45% african-american.
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a previous one-part system of democrats has evolved in a two-party system. the reasons -- besides the times changing, the reasons why i want to argue there is unconstitutional today are two-fold. they cannot be distinguished in terms of discrimination presently occurring. section five does not address modern voting problems. so, the jurisdictions that are currently covered are not currently the jurisdictions that generally experience the most egregious voting rights allegations. in 2000, the main allegations were coming from florida. in 2004, the main were coming from ohio. neither which are covered jurisdictions. registration, turn out and office rates in cover versus non
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cover are inn distinguish able. pre-clearance denials. i know one of us thinks that is a valid basis on which to judge the discrimination occurring. denials have dropped from 4% to .2% despite the increase in requests for pre-clearance. findings of intentional discrimination since 1992. there have been 24. 11 of those have come from cover jurisdictions. 13 have come from uncovered jurisdictions. more section two cases are brought in uncovered states than covered states. secondly, it does not remedy modern voting wrongs. i think this was exemplified better than i can do than our speaker from the law center that current complaints of discrimination are basically across the


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